May 18, 2007

In nearly 16 years on the court, Thomas typically has asked questions a couple of times a term.

He memorably spoke up four years ago in cases involving cross burning and affirmative action, the court’s only black justice in the unusual role of putting his race on display through questions to lawyers.

But the last time Thomas asked a question in court was Feb. 22, 2006, in a death penalty case out of South Carolina. A unanimous court eventually broadened the ability of death-penalty defendants to blame someone else for the crime.

Thomas has said in the past that he will ask a pertinent question if his colleagues don’t but sees no need to engage in the back-and-forth just to hear his own voice.

As the old song lyric goes: When I have nothing to say, my lips are sealed.

"That's why arguments should be televised. It's absurd that we have a bunch of senile octogenarians determing what the law is."

Hmm, there's only one Justice who's an octogenarian, John Paul Stevens. I suppose you'd like him thrown off the Court, which is strange, given that he joined the majority in Lawrence v. Texas, which means he's squarely on your "side" on any gay-rights questions. And, even though you seem dislike the idea that some of the Justices are old, I'm sure you hate the two youngest members of the court, Alito and Roberts.

So, as usual, you play sloppy with facts and your "argument" (whatever it is) is framed in the nastiest way possible, including your despicable racist swipe at Justice Thomas. Just another day in the life of the world's vilest urban sophisticate, downtownlad!

So, aside from the predictable "the Justices on our side are the smartest and coolest and those on your side are the dumbest and most evil" team-bast political mudslinging, can an actual smart person tell me the intellectual benefits of the oral argument? I'm sincerely curious; while they're certainly entertaining, how important are they?

But we have no real evidence that he is, or more to the point, that by not asking questions he pays better attention. Maybe he is paying attention; we don't really know. Maybe he's thinking about his favorite Long Dong Silver movies. Again, we don't really know.

Ann wrote:

Thomas has said in the past that he will ask a pertinent question if his colleagues don’t ...

As I've suggested before, it's truly remarkable if, since Feb. 22, 2006, the other justices have anticipated every single pertinent question that has occurred to Thomas. If, as others have noted previously, Thomas references oral arguments in his written work, then he implicitly acknowledges the value of oral argument. And as Ann mentions, Thomas has on rare occasions asked questions in court. This again suggests that Thomas sees some value in the process. So given that Thomas finds value in oral argument, why does he generally refuse to participate actively? How is it possible that Thomas has not thought of a pertinent question in well over a year that didn't occur to one of his colleagues? Does this indicate a lack of curiousity or intellectual depth?

I sat in on a session of the Court about 18 months ago, and the guy cracked a joke that broke everyone up.

He was alive and awake.

Meanwhile, Souter looked positively embalmed (Think Norman Bates' fruit cellar), O'Connor appeared pale and pained, Ginsburg resembled a dried apple doll in a store window, and Breyer had his head bowed, rubbing his scalp with his hands like he had a migraine.

I prefer Thomas' style to that of Scalia who must really like to hear himself talk. As a matter of curiosity, since these cases are presumably well researched prior to oral arguments, why are oral arguments even necessary? Why don't the clerks/justices pose written questions to the litigants and give them time to answer in writing where, it seems to me, you would get better and more complete arguments. Just what is it that is magic about time restricted oral arguments that may depend more on the rhetorical skills of counsel that the facts of the case?

"what is it that is magic about time restricted oral arguments that may depend more on the rhetorical skills of counsel that the facts of the case?"

Oral argument is the only phase of appellate procedure that is interactive. Waive oral argument and you lose the only opportunity to plug those little holes that the judges (or their clerks) will always find in your brief.

"the world's vilest urban sophisticate"

the true sophisticate is at home anywhere, which is not the case with dtl

DTL, I of course do not know what has you so vituperative of late, but chill out son! Your posts have degenerated into the rantings of a bitter bigot of late. I imagine if this development continues or (gasp) increases, you will be banned like our late poster Reality Check.

I appreciated your points back when you made them. I rarely agreed with them, but I appreciated them. Lately there is nothing to appreciate.

This is your second reference in a relatively brief time to Justice Thomas's disinclination to question during oral arguments. What motivated you to refer to it twice in such a short time frame and what do you make of it?

Is he supposed to be stupid or not paying attention because of his unwillingness to banter with colleagues or litigants, as Cyrus suggests above?

Theo, you've made two basic errors here. If you read my post carefully, you'll see that I clearly wrote:

Maybe he is paying attention; we don't really know.

Theo, how do you read that as suggesting that he doesn't pay attention?

Nor did I suggest that Thomas is "stupid," as you incorrectly assert. Theo, how did you manage to get the basic points of my post so terribly wrong? Did you really misunderstand what I wrote, or did it prove convenient to distort what I wrote for the sake of your argument?

As you usual - you make false charges where none apply. Do you even realize that the sleeping justice comment referred to Ginsburg?

I happened to favor the nominations of Alito and Roberts. The President has the right to appoint his justices, and as long as the Senate approves, I have zero qualms with that.

I'm also not worried about Lawrence V. Texas is going to be repealed. That's pretty clear to anyone with half a brain that its going to happen. I'm disgusted by it, but I'm also disgusted with a gazillion other things going on in this country, including the fact that I have to subsidize the education other people's kids.

And boo hoo - Stevens will get kicked off the court of octogenarians are banned. So what. Scalia is not exactly a youngster at 71. I think a mandatory retirement age of 72 sounds about right.

Mindsteps: I monitor news stories about the Supreme Court and write about them when I find them interesting enough. This post is on a Boston Herald report that he didn't speak once all term. The previous one is a big WaPo article derived from a new biography of him. What was your theory?

I haven't read Thomas's biography and have little additional information about him therefore any theory I were to propose would not be fair to him, you, or your readers. Because I have so little good data, it would tell you more about me then him. Moreover, I wouldn't want somebody characterizing me who did not spend alot of time and effort collecting information about me, so I try to apply the same criteria to others. Even when I have alot of information about another person, I find that I often mischaracterize important features of that person (as I have demonstrated already when I have replied to some of your commenters or you on your blog). I figure that you know a heck of alot more about the man, so I am interested in your appraisal or the assessments of others who have done more study of Clarence Thomas.

Mindsteps said..."I ... have little additional information about [Thomas] therefore any theory I were to propose would not be fair to him .... [Were I to propose one], it would tell you more about me then him."

The theories on Thomas' silence imply that a justice who talks frequently is a sign of intellectual fortitude.

Of course, anyone who has done oral argument would say that it could simply be that the justice disagrees with you and is trying to take up your time and drag you all over the jurisprudential playing field.

Also, allow me to offer that if you have not read the cases in which Justice Thomas writes the opinion/concurrence/dissen, you really know little of value about his legal theories and presumptions.

Media reports on these matters are near worthless if you're interested in an indepth understanding. Go to the source, and you'll soon realize what law students encounter their first year -- that both sides usually have a pretty good argument.

Some of these comments are really ignorant. Do you know Justice Thomas's biography? He grew up in completely underprivileged conditions. The idea that he is the one with the least natural gifts is incredibly ignorant. Have you read his opinons? Are you not afraid of appearing racist?

Thomas was an obvious affirmative action choice. And I happen to oppose affirmative action. And as earlier commenters stated, the most qualified black candidates are obviously more likely to be liberal. If you're looking for movement conservatives who also happen to be black, you are narrowing the pool of allowable applicants down quite quickly.

Just like when you want to find a gay conservative, you are quickly left with tools like GayPatriot.

Not really that different from Sandra Day O'Connor if I might add. Choosing a state legislator to be a Supreme Court Justice. Give me a break. But that's the best that conservatives can do. When Democrats choose a women, they get to pick valedictorians from Columbia law like Justice Ginsburg. Although O'Connor was 3rd in her class at Stanford Law if memory serves correctly.

And tell me Ann - how do we know that his opinions were really written by him? How do we know that they weren't written by clerks? And that applies to other justices as well. I have no idea if they wrote them, so I think it's foolish to judge their intelligence by their written opinions.

I don't even have a law degree, but if you let me choose my clerks, I can pick the editor of the Harvard Law Review to be my clerk - and I'm sure I could "write" some finely written, intelligent pieces.

Is it really that hard to say "I want the answer to be X: Go write an opinion that gets me to that answer.".

Is that what's happening? I don't know for sure, but it certainly appears so.

Is Thomas unqualified to be on the court? I didn't say that. He's qualified alright. But his peers are intellectual heavyweights compared to him.

But so what - they are intellectual heavyweights compared to most of this country - including you - and including me.

Stevens - Editor in chief of the Northwestern University Law review, and highest GPA in the history of the law school.

Scalia - magna cum laude from Harvard Law

Kennedy - Harvard Law School

Souter - Rhodes Scholar and Harvard Law

Ginsburg - First in class at Columbia Law

Breyer, Marshall Scholar at Oxford and Harvard Law

Alito - Editor of Yale Law Journal

Thomas - Yale Law School

Based on this, maybe you could make the argument that Thomas is equal with Kennedy in terms of intelligence, i.e. tied for last.

But my hunch is that Thomas got into Yale Law, because of Affirmative Action, as he was only cum laude at Holy Cross - big deal. How many cum laudes from Holy Cross who are white get into Yale Law?

I don't see why I have to be politically correct about this. I'm just calling it as I see it, and based on credentials, it doesn't look like Thomas is as smart as the other justices.

I could be wrong. Would be cool if someone could get their hands on the justices' LSAT scores.

Thomas opposes affirmative action as well. So I think it's humerous to bring up their challenging upbringings. What does that have to do with it? Clarence Thomas, for one, thinks it's irrelevant. So do I.

Many people wrongly assumed Thomas's silence was because he didn't grasp what was going on. This is silly. Either way, the bar for questioning is reasonably low, and often, even in more intense oral arguments judges often ask questions regarding the subtext.

I think this reflects Thomas's view that oral argument does not really add much to the process - as hdhouse says "just email in the arguments."

This is not wrong or right I guess, but just not typical. And I wonder how much of this is influenced by his own experience as a lawyer.

Theo - Tushnet's book really is excellent, very readable, and I thoroughly reccomend it, with this qualification: beware of critical legal theorists bearing gifts. It's a very good book, but throughout, I felt uneasily that I was being sold something, that there was something being slipped under the radar here. Tushnet is far from a disinterestd voice in all this. So I would suggest reading Tushnet's book, and then reading Jan Crawford Greenburg's book; they're both excellent in different ways, although I think Greenburg's is probably the better of the two, and certainly the more evenhanded of the two.

Ann Althouse said... Some of these comments are really ignorant. Have you read his opinons? Are you not afraid of appearing racist? (in reference to downtownlad)"

Ann, this is precisely the point. That, in fact, would be all the Thomas need say on occasion. One of the benefits of oral argument is the engagement issue. In debate it is often the 2nd or 3rd supporting point the makes the case and wouldn't it be beneficial to prompt deeper reasoning?...even if Thomas said "that is dumb", or "what did you mean by that" or "haven't you read xyz opinion" or "on face, that sounds racist - please tell me why it is not"?...your points exactly.

Last, it isn't beneficial in this case to play a race card here in the hopes of defusing the racial issue in his nomination. Certainly his nomination hearings were filled with the racial considerations for his selection and the process is not colorblind.

Were there ever a criticism of affirmative action as a concept and a policy, it shows up on this very thread. The policy poisons every "protected minority" who may, by virtue of their own character, rise to a prestigious position. They can always be easily dismissed as "the affirmative action candidate..."

On an unrelated point, I also find it interesting there are those who want to use LSAT scores as a measure of intelligene. How is an LSAT score different (at least in theory) from an IQ test? Of course, we all know there is no such thing as IQ as a measure of intelligence (sarcasm off)

TJL has made the case for interactivity as the rationale for restricted oral arguments are necessary. I see the merit in that, but it pales as a rationale if you consider the alternatives: written questions and answers that permit the litigants to respond to justices' questions in a well thought out mode and buttressed by research. The mere fact that oral arguments are time restricted tells me that they are more for the display of rhetorical pyrotechnics than for substantive reasons. Example: oral arguments open a conversation that becomes increasingly fruitful and relevant; all justices jump in (well, maybe not Thomas) but the time is up and it stops--THIS is why oral arguments are necessary and important. No one really believes that do they?

"the alternative [to oral arguments]: written questions and answers that permit the litigants to respond to justices' questions in a well thought out mode and buttressed by research"

The well-thought out arguments buttressed by research are supposed to be included IN THE BRIEF. That is, when drafting your brief, you should be able to anticipate, from the existing case law, where your weak points are. Ideally, you will then find ways to address them preemptively in your brief. If you haven't done your research and prepared to defend your weak points by the time of oral argument, it can only be because your arguments are so weak they can't be defended.

The appellate process is long and slow enough as is, without adding another round of written questions and answers. Appellants need to have their cases adjudicated, particularly criminal appellants, who by the time their cases are decided have sometimes served their time, paroled, or died.

I think Thomas's admission to Yale was probably the best form of affirmative action, which Justice Douglas wrote about in DeFunis:

"A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fairminded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him. Because of the weight of the prior handicaps, that black applicant may not realize his full potential in the first year of law school, or even in the full three years, but in the long pull of a legal career his achievements may far outstrip those of his classmates whose earlier records appeared superior by conventional criteria. There is currently no test available to the Admissions [416 U.S. 312, 332] Committee that can predict such possibilities with assurance, but the Committee may nevertheless seek to gauge it as best it can, and weigh this factor in its decisions. Such a policy would not be limited to blacks, or Chicanos or Filipinos, or American Indians, although undoubtedly groups such as these may in practice be the principal beneficiaries of it. But a poor Appalachian white, or a second generation Chinese in San Francisco, or some other American whose lineage is so diverse as to defy ethnic labels, may demonstrate similar potential and thus be accorded favorable consideration by the Committee."

As to the stigma that attaches to affirmative action as it is now practiced, I think Thomas himself is aware of it and entitled to be personally pissed off about it. He didn't set up that kind of policy, and he's obviously voted against it. Read his dissenting opinion in Grutter:

"It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondents Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the “beneficiaries” of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma–because either racial discrimination did play a role, in which case the person may be deemed “otherwise unqualified,” or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination."

The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the “beneficiaries” of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma–because either racial discrimination did play a role, in which case the person may be deemed “otherwise unqualified,” or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination.

I don't accept the premise of Thomas' argument, i.e., that "when blacks take positions in the highest places," it is "an open question today whether their skin color played a part in their advancement." In fact, Thomas has the practical reality of the situation he decribes backwards--it is only when ANY person (independent of race or gender) is deemed not particularly well-qualified that others look for an explanation that may rely on considerations of favoritism or advantage of one form or another.

Also, as a black man who has received no benefit from affirmative action, I don't feel in any way "marked" as Thomas suggests.

Ann wrote:

As to the stigma that attaches to affirmative action as it is now practiced, I think Thomas himself is aware of it and entitled to be personally pissed off about it.

Theo Boehm said..."Simon, I've just ordered Tushnet's book from Amazon."

Mark, send the commission cheque to... ;)

"For my part, I am fairly well acquainted with Thomas' biography, and, as I said above, he is an impressive individual. Is he somehow the 'least smart' person on the Supreme Court?"

I have no idea what Thomas' IQ is, but when he and eight other smart people on the court divide, he's mostly on the side of the better argument, so I tend to think it's a waste of time to compare his school to Stevens' school, his vita against Ginsburg's vita, and so forth. He's smart enough that he's one of two members of the court who've almost consistently got it right, and that's good enough for me. Of course, it does start to beg the question of what it means to be smart - I see some fairly smart people lined up in dissent in Hudson v. Michigan, for example, but if they're as smart as Cyrus thinks, they wouldn't have been in dissent, now would they? ;)

Smart is measured by what you do not where you went to school, and Thomas is exemplary measured by what he's actually done on the court - which is the only relevant metric.

Cyrus, I read your comments here, and I've read them in previous threads on the same subject, and it's quite clear that it would be now as it was then a collosal waste of time to explain to you why you're wrong, so I'm just going to sneer at you with well-earned contempt and be done.

It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination.

True. But Clarence Thomas isn't one of them. He wouldn't have gotten into the Holy Cross without Affirmative Action. He wouldn't have gotten into Yale Law without Affirmative Action. He wouldn't have been appointed to the Supreme Court without affirmative action.

Clarence Thomas says he opposes affirmative action. Does he think he was really the best candidate to be appointed at the time?

If he's really so "pissed" about being viewed as an affirmative action pick, then maybe he should have gone to schools that better suited his academic profile. Cum Laude at Holy Cross - why I'm sure with decent LSATs, maybe he could have gone to Boston University Law School.

Would that disqualify him from the Supreme Court? Nope. But lets not pretend that he has the intellectual rigor of the others.

Affirmative Action is a dumb policy, because it stigmitizes blacks who have gained their position through legitimate achievements.

Clarence Thomas would not be where he is without affirmative action, and I'm not afraid to point that out. Without affirmative action, I'm certain that he would have had a very successful career as a lawyer. Now he's a Supreme Court Justice making obscenely stupid decision, such as saying that torture of prisoners is entirely consitutional.

I see some fairly smart people lined up in dissent in Hudson v. Michigan, for example, but if they're as smart as Cyrus thinks, they wouldn't have been in dissent, now would they?

Simon, I haven't commented on Hudson v Michigan nor have I commented on the relative intelligence of any of the USSC justices. Why do you feel the need to fabricate opinions for me? If you want to play strawman, can you use another name for your creation other than Cyrus?

If you are honest, Simon, (and I encourage you to try it sometime), you've made no effort to read my posts accurately and respond intelligently. Instead, you intentionally misrepresent what I've written and take a cheap shot or two before you scamper off, claiming to be unable to explain yourself. It's very tedious, Simon. However, perhaps this is really the best you can do. If not, try harder please.

Downtownlad: You've cited a case where Thomas wrote "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not "cruel and unusual punishment.'" How does that say what you wrote, that "torture of prisoners is entirely consitutional"? Thomas writes: "Surely a prisoner who alleges that prison officials tortured him with a device like the notorious 'Tucker Telephone'... has alleged a serious injury. But petitioner has not alleged a deprivation of this type; the injuries he has alleged are entirely physical, and were found below to be 'minor.'" This is a case about what the test is for "cruel and unusual punishment."

Cyrus Pinkerton said..."you intentionally misrepresent what I've written and take a cheap shot or two before you scamper off, claiming to be unable to explain yourself."

Just so we're clear:

I haven't scampered off, and I didn't claim to be unable to explain myself. I told you that it wasn't worth wasting valuable pixels trying to explain your myriad mistakes and flawed premises, on which you're not likely to budge. This isn't the first time you've advanced your view on Clarence Thomas' silence during oral arguments, you were wrong then and you're wrong now.

Cyrus Pinkerton, in response to Ann's comment... "As to the stigma that attaches to affirmative action as it is now practiced, I think Thomas himself is aware of it and entitled to be personally pissed off about it."

But only an ideologue would allege that a cracked dental plate is a "minor" injury. But that's what happens when you have justices who are so consumed with their ideology (police are always right), that common sense just goes out the window.

It's like the establishment clause of the constitution. It's there for a reason. But Clarence Thomas has not met, and will never meet, a case that he feels violates that clause.

You've repeatedly misrepresented what I've written and I've repeatedly called you on it. When given the opportunity to correct your errors and explain your assertions, you reliably decline, here and elsewhere. You've now twice bothered to explain why you can't be bothered to defend your distortions and fabrications. This strikes me as an attempt to filibuster; it shows a lack of honesty and courage.

Generally I see this type of sniper behavior when people find they are incapable of engaging in rigorous debate. Simon, it's perfectly reasonable to admit ignorance of or disinterest in a particular line of debate. I respect people who honestly acknowledge what they don't know; I have no respect for those who shriek "I'm right and you're wrong!" and refuse to defend their position. To the extent that you care about your reputation here, it is better served by honesty than a pretense of being right.

Finally, in your last comment you wrote this:

I told you that it wasn't worth wasting valuable pixels trying to explain your myriad mistakes and flawed premises, on which you're not likely to budge.

Why don't you try to explain just ONE of my "mistakes" or "flawed premises" from one of my posts here? I suspect that the reason you won't has nothing to do with "wasting valuable pixels." I suspect it has far more to do with the fact that you have nothing of substance and intelligence to offer in response to my comments. Also, you foolishly think your assessment of my willingness to "budge" should be the basis for your willingness to re-examine your opinions and defend your claims. This is a poor excuse in honest debate and an even worse excuse when you are being asked to defend your misrepresentations.

This has been a very poor performance by you, Simon. Please try harder.